ORDER: U. DURGA PRASAD RAO, J Challenging the notice dated 19.10.2018 issued by the Execution Court i.e., Senior Civil Judge, Ramachandrapuram in E.A.No.494/2018 in E.P.No.210/2010 in O.S.No.279/2006, JDR No.2 filed the instant C.R.P. under Section 115 CPC. 2. The factual matrix of the case which led to file the CRP is thus: (a) The 1st respondent/DHR obtained money decree against the JDRs on the file of II Additional Senior Civil Judge Court, Visakhapatnam and got transferred the decree for execution to the Court of Senior Civil Judge, Ramachandrapuram. He filed E.P.No.210/2010 for sale of E.P. schedule landed property and for realisation of E.P. amount. The JDRs contested the E.P. inter alia contending that they were not the original borrowers and the suit was filed against them as LRs of deceased borrower T.Chandra Reddy and so their liability was only to the extent of the properties left behind by late Chandra Reddy, but they were not personally liable. They contended that the E.P. schedule properties were originally ancestral properties and while the JDRs were minors, in order to safeguard their interest their next friend filed a partition suit O.S.No.100/2008 and in that suit the properties were divided and the JDRs were allotted their respective shares in I.A.No.409/2011 in O.S.No.100/2008 by the Senior Civil Judge, Ramachandrapuram. The E.P. schedule items 1 & 2 thus fell to the share of JDR No.2 as per the decree and judgment in the said suit and therefore, those properties are exclusive and absolute properties of JDR No.2. They also contended that a mortgage suit is pending against the E.P. schedule property in O.S.No.9/2011 in the Court for the trial of offences under SC & ST (Prevention of Atrocities) Act-cum-Additional District Court, Rajahmundry. (b) It should be noted that with the same averments JDR No.2 filed a claim petition under Order XXI Rule 58 CPC in E.A.No.532/2016 to raise the attachment over the EP schedule properties and to set aside the sale dated 06.06.2016 held in the E.P. The 1st respondent/DHR opposed the said petition. After due enquiry the execution Court dismissed the said petition on 17.04.2017 holding that the partition suit in O.S.No.100/2008 was filed two years after passing of decree in O.S.No.279/2006 and hence, the said suit was a collusive one. After due enquiry the execution Court dismissed the said petition on 17.04.2017 holding that the partition suit in O.S.No.100/2008 was filed two years after passing of decree in O.S.No.279/2006 and hence, the said suit was a collusive one. The Court further observed that since the debt contracted by late Chandra Reddy was not established as Avyavaharika debt, the JDRs are liable to discharge the debt under pious obligation theory. Since the claim petition was dismissed, the execution Court in its order dated 17.04.2017 confirmed the auction sale and issued Sale Certificate to the decree holder who eventually happened to be the auction purchaser also. The Court closed the E.P. It appears aggrieved by the aforesaid order JDR No.2 filed appeal before the District Court, Rajahmundry and same is pending. (c) While so, DHR filed E.A.No.494/2018 for physical delivery of the EP schedule property and the Court issued warrant of delivery under Order XXI Rule 95 CPC to the field assistant on 19.10.2018 to deliver the EP schedule property. Questioning the said delivery warrant, the instant CRP is filed. 3. Heard Sri Chaparla Sitaram, counsel representing Sri T.Phanindra Reddy, learned counsel for petitioner, and Sri S.V.S.S.Sivaram, learned counsel for first respondent. 4. At the first instance, learned counsel for petitioner challenged the delivery proceedings on the same averments with which the petitioner/JDR No.2 filed claim petition in E.A.No.532/2016. Such arguments could not be appreciated for the reason, the execution Court in its order dated 17.04.2017 already dismissed E.A.No.532/2016 and aggrieved thereby the petitioner filed an appeal before the District Court and same is pending. 5. Then learned counsel, on the instructions of the petitioner, requested the Court to permit the petitioner/JDR No.2 to deposit the E.P. amount along with E.P. costs and other incidental expenditure incurred by the DHR and sought to set aside the sale. Learned counsel for respondent/DHR opposed the prayer of the petitioner on the main ground that the sale property was already delivered to the DHR and at this stage the petitioner’s request to permit him to deposit the E.P. amount cannot be considered under law. Learned counsel for respondent/DHR opposed the prayer of the petitioner on the main ground that the sale property was already delivered to the DHR and at this stage the petitioner’s request to permit him to deposit the E.P. amount cannot be considered under law. In reply, learned counsel for the petitioner would argue that though the field assistant returned the delivery warrant with his report that he delivered the property, still the execution Court has not recorded the delivery and therefore, the petitioner has a right to request this Court to permit him to deposit the E.P. amount. 6. The point for consideration is whether the prayer of the petitioner to permit him to deposit the E.P. amount and set aside the sale is legally permissible? 7. POINT: A sale held in Court auction in execution of a decree can be set aside under the circumstances enumerated in Order XXI Rule 89, 90 & 91 CPC, of which, Rule 89 alone is germane for our discussion. Rule 89 CPC reads thus: 89. Application to set aside sale on deposit: (1) Where immovable property has been sold in execution of a decree, [any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person,] may apply to have the sale set aside on his depositing in Court,- (a) for payment to the purchaser, a sum equal to five per cent. of the purchase-money, and (b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder. (2) Where a person applies under rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule. (2) Where a person applies under rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule. (3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale.” Thus Rule 89 requires two primary conditions to be satisfied viz., (i) the applicant must deposit in the court for payment to the auction-purchaser five per cent of the purchase-money; and (ii) he must also deposit the amount specified in the proclamation of sale (less any amount received by the decree-holder since the date of proclamation of sale) for payment to the decree-holder. In Challamane Huchha Gowda v. M.R.Tirumala, 2004(1)ALD 41(SC) = MANU/SC/1002/2003 it was observed that the object of the rule is to provide a last opportunity to the JDR to put an end to the dispute before the sale is confirmed by the Court and also to save his property from dispossession. It was further observed that if the JDR fulfils the two conditions i.e., depositing a sum equivalent to 5% of the purchase money to be paid to the purchaser and deposits the amount specified in the proclamation of sale less the amount already received by the decree holder since the date of such proclamation, the Court shall make an order for setting aside the sale under Rule 92(2) of Order XXI CPC on an application made to it. In other words what was required was the compliance of Court’s order or decree which was sought to be executed. It was held that the application was not required to be filed in a particular form to set aside the sale, but rather even a memo with a prayer for setting aside the sale was sufficient compliance with the Rule. 8. On the question as to when the application has to be filed and amount stipulated in Rule 89 to be deposited, Rule 92 and Article 127 of the Limitation Act, 1963 need to be referred? 9. Rule 92 reads thus: 92. 8. On the question as to when the application has to be filed and amount stipulated in Rule 89 to be deposited, Rule 92 and Article 127 of the Limitation Act, 1963 need to be referred? 9. Rule 92 reads thus: 92. Sale when to become absolute or be set aside.- (1) Where no application is made rule 89, rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute: [Provided that, where any property is sold in execution of a decree pending the final disposal of any claim to, or any objection to the attachment of, such property, the Court shall not confirm such sale until the final disposal of such claim or objection.] (2) Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within [sixty days] [Subs. By Act 22 of 2002, sec. 14, for “thirty days” (w.e.f. 1-7-2002)] from the date of sale, [or in cases where the amount deposited under rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale]: Provided that no order shall be made unless notice of the application has been given to all persons affected thereby: [Provided further that the deposit under this sub-rule may be made within sixty days in all such cases where the period of thirty days, within which the deposit had to be made, has not expired before the commencement of the Code of Civil Procedure (Amendment) Act, 2002.] (3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made. (4) Where a third party challenges the judgment-debtor's title by filing a suit against the auction-purchaser, the decreeholder and the judgment-debtor shall be necessary parties to the suit. (4) Where a third party challenges the judgment-debtor's title by filing a suit against the auction-purchaser, the decreeholder and the judgment-debtor shall be necessary parties to the suit. (5) If the suit referred to in sub-rule (4) is decreed, the Court shall direct the decree-holder to refund the money to the auction-purchaser, and where such an order is passed the execution proceeding in which the sale had been held shall, unless the Court otherwise directs, be revived at the stage at which the sale was ordered. 10. Article 127 of the Limitation Act, 1963 reads thus: Description of application Period of limitation Time from which period begins to run To set aside a sale in execution of a decree, including any such application by a judgment-debtor [Sixty days] Subs. By Act 104 of 1976, sec. 98, for “Thirty days” (w.e.f. 1-2-1977) The date of the sale 11. Noticing that in Rule 92(2), period of thirty days was provided for deposit of the amount mentioned in Rule 89 and whereas period of sixty days was provided in Article 127 of the Limitation Act, the Apex Court in Basavantappa v. Gangadhar Narayan Dharwadkar (1986) 4 SCC 273 = MANU/SC/0343/1986 while agreeing with the view of Madras High Court in Thangammal v. K.Dhanalakshmi [ AIR 1981 Mad 254 ] held that Rule 89 & 92(2) CPC and Article 127 of the Limitation Act should receive a harmonious construction i.e., time limitation for both filing of application and deposit of amount shall be sixty days. However, in a subsequent decision reported in P.K.Unni v. Nirmala Industries (1990) 2 SCC 378 = MANU/SC/0172/1990 the Apex Court disagreed with the ruling in Basavantappa’s case (supra) and observed that Rule 89 CPC and Article 127 of the Limitation Act operate on different spheres and there is no repugnancy between the two. It was observed that both the provisions prescribe time for different purposes. While Rule 89 postulates an application on deposit of the amount in Court, the words “may apply to have the sale set aside on his depositing in court” would show that the deposit is a condition precedent to the making of an application to set aside a sale. The said condition must be satisfied within the period prescribed by Rule 92(2) CPC which undoubtedly is thirty days. The said condition must be satisfied within the period prescribed by Rule 92(2) CPC which undoubtedly is thirty days. Whereas Article 127 of the Limitation Act relates solely to the making of an application and not to a deposit. While Rule 92(2) requires a deposit to be made within thirty days from the date of sale, Article 127 requires an application contemplated under Rule 89 CPC to be made within sixty days from the date of sale. The Apex Court thus observed that the deposit must necessarily precede the application, for, no application under Rule 89 can be made except on depositing the amount in court. 12. The correctness of the decision in P.K.Unni’s case (supra) came up for consideration before a Five Judge bench in Dadi Jagannadham v. Jammulu Ramulu (2001) 7 SCC 71 = MANU/SC/0475/2001. It was ultimately held thus: “18. Having given our careful consideration to the question, we are of the opinion that there is no anomaly and that there are no different periods of limitation for making deposits and/or filing an application for setting aside the sale. It is by virtue of Order XXI Rule 89 CPC that an application for setting aside a sale and a deposit can be made. Order XXI Rule 89 CPC does not prescribe any period within which the application is to be made or deposit is to be made. All that Order XXI Rule 92(2) provides is that if the deposit is made within 30 days from the date of sale and an application is filed then the Court would have no discretion but to set aside the sale. That does not mean that if the deposit is made after 30 days the Court could not entertain the application. If the deposit is made beyond the period of 30 days, but within the period of 60 days, then it will be within the discretion of the Court whether or not to grant the application. Thus, an application can be made within the period prescribed under Article 127 of the Limitation Act. As an application can be made within 60 days and, as stated above, no period for making a deposit is prescribed under Order XXI Rule 92(2) the deposit can also be made within 60 days. Thus, an application can be made within the period prescribed under Article 127 of the Limitation Act. As an application can be made within 60 days and, as stated above, no period for making a deposit is prescribed under Order XXI Rule 92(2) the deposit can also be made within 60 days. In our view, therefore, the view expressed in P.K. Unni's case that Order XXI Rule 92(2) CPC prescribes a period of limitation for making a deposit is not correct.” Thus, it was held that filing of application and deposit can be made within sixty days from the date of sale. 13. It is to be noted that the period of “thirty days” mentioned in Rule 92(2) was later amended to “sixty days” by the CPC Amendment Act 22 of 2002 w.e.f. 01.07.2002. Therefore, a JDR or the person interested in the auctioned property can now file an application to set aside the sale and deposit the amount stipulated in Rule 89 within sixty days from the date of sale. 14. In the lines of Jammulu Ramulu’s case (supra), the Apex Court in Ram Karan Gupta v. J.S.Exim Ltd., AIR 2013 SC 24 = MANU/SC/1049/2012 held that an application to set aside the same need to be filed and amount to be deposited within sixty days. 19. We notice, in this case, there was no reference at all to the provisions of Order 21 Rule 89 in the application filed by the appellant on 1.12.2010, be that it may, even then the appellant had not complied with the mandatory requirements of depositing the amount. Clause (a) of Sub- rule (1) of Rule 89 of Order 21 requires the applicant to deposit in Court 5 per cent of the purchase money for payment to the auction purchaser. Deposit of the requisite amount in the Court is a condition precedent or a sine qua non to an application for setting aside the execution of sale and such a amount must be paid within a period specified in the rule and if the deposit is made after the time limit, the application must be dismissed. The deposit made under Rule 89 of Order 21 Code of Civil Procedure should be unconditional and unqualified and the decree holder or the auction purchaser should be able to get the amount at once. 20. The deposit made under Rule 89 of Order 21 Code of Civil Procedure should be unconditional and unqualified and the decree holder or the auction purchaser should be able to get the amount at once. 20. We have already indicated that the rule is in the nature of a concession shown to the judgment debtor, so he has to strictly comply with the requirements thereof and a sale will not be set aside unless the entire amount specified in rub-rule (1) is deposited within 60 days from the date of the sale and, if it is beyond 60 days, the Court cannot allow the application. We have already found that the appellant-judgment debtor did not pay the amount within the stipulated time and he only made an application on 1.12.2010 without depositing the amount and hence the Court cannot entertain such an application and bound to confirm the sale which, in this case, the Court did on 23.10.2010. 15. Thus, the above jurisprudence can be summed up to the effect that the JDR can file an application under Rule 89 CPC to set aside the sale within sixty days from the date of sale. However, the sine qua non to set aside the sale is that he shall deposit the amounts specified in Rule 89 within sixty days from the date of sale as otherwise the Court cannot allow the application. 16. In the instant case, the record shows that the claim petition in E.A.No.532/2016 was dismissed on 17.04.2017 and thereafter the execution Court confirmed the sale on 17.04.2017 and issued the sale certificate to the DHR. He then filed E.A.No.494/2018 for delivery of the auctioned property and the field assistant of the Court delivered the property on 25.10.2018 and submitted report to the Court. The petitioner/JDR only challenged the delivery warrant dated 19.10.2018 in the instant C.R.P. However, he has neither filed the application nor deposited the amount as specified in Rule 89 CPC within sixty days from the date of sale. The petitioner cannot take advantage of the formal non-recording of delivery by the Court, for he has not complied with the procedural mandate as stated supra. Therefore, at this stage his request to permit him to deposit the amount and to set aside the sale cannot be legally accepted. 17. There are no merits in the C.R.P. and the same is accordingly dismissed. No costs. Therefore, at this stage his request to permit him to deposit the amount and to set aside the sale cannot be legally accepted. 17. There are no merits in the C.R.P. and the same is accordingly dismissed. No costs. Interlocutory applications, if any, pending in this Civil Revision Petition shall stand closed.